Should voluntary overtime be taken into account when calculating holiday pay?
according to the Court of Appeal (CA) in the case of Flowers v East of
England Ambulance Trust – but only if the voluntary overtime is
sufficiently regular, so that payments made in respect of it amount to
The employees were all
employed by the East of England Ambulance Trust (the Trust) in a range
of roles concerned with the provision of ambulance services. They had
clauses in their NHS terms and conditions of service relating to
mandatory and non-guaranteed overtime and also in relation to voluntary
overtime. The voluntary overtime was overtime that the Trust had no
obligation to offer them and which they had no obligation to work if
The employees brought a claim to the Employment Tribunal,
alleging underpayment of their holiday pay. They argued that both their
non-guaranteed overtime and their voluntary overtime should count
towards their “normal” remuneration and therefore should both be taken
into account when working out their holiday pay entitlement.
Employment Tribunal decided that, under the employees’ employment
contracts and also under the Working Time Directive, non-guaranteed
overtime (typically, extra work undertaken at the end of a shift, when
the employees are in the middle of carrying out a task which they must
see through to the end) should be included, but that voluntary overtime
should not. The employees appealed to the Employment Appeal Tribunal
(EAT). The EAT decided that voluntary overtime was part of normal
remuneration if it was paid over a sufficient period of time and on a
regular and/or recurring basis.
The Trust then appealed to the
Court of Appeal, which agreed with the EAT, ruling that voluntary
overtime, if frequent enough, should be taken into account when
calculating a worker’s holiday pay entitlement under the working time
Was it unlawful disability discrimination to refuse
employment because of a perception of a risk of future inability to work
in a particular role?
Yes, according to the Court of Appeal (CA) in the case of Chief Constable of Norfolk v Coffey.
Coffey was a police officer in the Wiltshire Constabulary. When she
applied for her job in 2011, it was discovered that she suffered from a
degree of hearing loss, which fell slightly outside the Home Office
Medical Standards for Policy Recruitment. Ms Coffey undertook a
functional hearing test which she passed and as a result she was
appointed as a constable.
In 2013, she applied for a transfer to
Norfolk Constabulary, but it was refused because a medical adviser
stated that she had hearing loss “just outside the standards for
recruitment, strictly speaking”.
Her hearing loss had never caused
her any problems in doing her job and she did not consider herself
disabled within the meaning of “disability” set out in the Equality Act
2010. However, she brought a disability discrimination claim, on the
basis that she had been discriminated against because of a perceived
disability. Perception discrimination is where A acts because he or she
thinks that B has a particular characteristic, even if they in fact do
not. Her claim succeeded at the Employment Tribunal and the Chief
Constable of Norfolk’s appeal to the Employment Appeal Tribunal (EAT)
Under the Equality Act, a condition is a
disability if it has a substantial and long-term adverse effect on an
individual’s ability to do normal day to day activities. The EAT said
that the phrase “normal day-to-day activities” should be given “an
interpretation which encompasses the activities which are relevant to
participation in professional life”. Norfolk Constabulary’s belief that
Ms Coffey’s hearing loss would, currently or in the future, render her
unable to perform her duties of a front-line police offer was a
perception that it would have an effect on her ability to carry out
normal day-to-day activities. The CA agreed.
question was whether to refuse employment because of a perception of a
risk of future inability to work as a front-line officer fell within the
terms of the Equality Act. The CA decided that it did.
tribunal entitled to find that an employee was not subjected to
religious discrimination on the basis that he was dismissed because of
the manner in which he had expressed his beliefs, rather than because of
the beliefs themselves?
Yes, decided the Employment Appeal Tribunal (EAT) in the case of Page v NHS Trust Development Authority.
Page, a practising Christian, was a non-executive director (NED) of an
NHS Trust. He was also a lay magistrate. His religious belief included
the belief that every child should be brought up by a mother and father
and that it is ‘not normal’ to be adopted by a same sex couple or an
In 2014, in his role as a lay magistrate, he had to
consider the adoption application from a same sex couple. As a result of
remarks made by Mr Page to the national media – namely that it is not
in the best interests of a child to be adopted by anyone other than a
mother and father and that it is “not normal” to be adopted by a single
parent or a same-sex couple - the Trust terminated his appointment as a
Mr Page claimed unlawful discrimination based on his
religious belief and he brought claims of direct discrimination,
indirect discrimination, victimisation and harassment.
Employment Tribunal (ET) dismissed Mr Page’s claim due to a variety of
reasons. These included that he had been dismissed because of the manner
in which he had expressed his beliefs (rather than because of the
beliefs themselves) and because he had spoken to the media without
informing the Trust and had done so in the knowledge that his conduct
would be likely to have an adverse effect on the Trust’s ability to
engage with sections of the community it serves. Mr Page appealed to the
EAT, but the EAT turned down the appeal.
Can words be removed
from a restrictive covenant clause so as to make it enforceable when
otherwise it would be an invalid restraint of trade?
according to the Supreme Court in a landmark decision in the case of
Tillman v Egon Zehnder Limited. This recent judgment has overturned a
century-old principle on non-competition clauses.
Ms Tillman left
her employment with Egon Zehnder Limited and agreed to comply with all
of the post-employment restrictive covenants in her employment contract,
apart from a non-competition covenant, which stated that she should not
“directly or indirectly engage or be concerned or interested” in any
competing business. Ms Tillman sought to extricate herself from that
six-month non-competition restriction by arguing that because the clause
prevented her from (among other things) being “interested in” a
competitor business, it had the effect of preventing her from even
having any shareholding in a competitor and that it was therefore an
unreasonable restraint of trade.
The High Court granted an interim
injunction restraining Ms Tillman from working for a competing
business, but on appeal the Court of Appeal said that the
non-competition covenant was unreasonably wide and was therefore void,
as it was an unreasonable restraint on trade.
Egon Zehnder Limited appealed to the Supreme Court.
Supreme Court said that the wording of the restriction did prohibit
even having a shareholding in a competitor and that that prohibition was
unreasonably wide. This meant that the restriction would be void unless
the Court decided that it could delete the words “or interested” from
the restriction. Without those words, the restriction would be
reasonable and so enforceable.
The Supreme Court decided that the
words “or interested” could be removed (“severed”) from the clause and
that this meant that the restriction in the remainder of the covenant
was enforceable against Ms Tillman.
The Supreme Court considered the following two factors to always be critical to questions of severance:
application of the “blue pencil test” – namely that there can only be
removal of words if upon removal, there would be no need to add to or to
modify the words which remain, and
(ii) removal can only take place if it does not generate any major change in the overall effect of the restrictive covenant.